The Right of Return from Bosnia to East Timor: A Comparative Analysis

Fahad AnsariResearcher at the Islamic Human Rights Commission

Abstract:The author looks at the particularities and precedent set by the resolution of other conflicts and the primacy and effectiveness of the principle of refugee return in all namely: Bosnia, East Timor, Tajikistan and Kosovo. In all cases international norms were respected and implemented, even when conflicts were fought over and resolved on the right of self-determination. Refugee return is not only a moral imperative but one that can be practically implemented and have long reaching pragmatic results in terms of nation-building and creating cohesive and potentially egalitarian societies.

No settlement can be just and complete if recognition is
not accorded to the right of the Arab refugee to return to the home from which
he has been dislodged...It would be an offence against the principles of
elemental justice if these innocent victims of the conflict were denied the
right to return to their homes while Jewish immigrants flow into Palestine, and
indeed, offer the threat of permanent replacement of the Arab refugees who have
been rooted in the land for centuries."

- UN Mediator for Palestine, Count Folk Bernadotte, 16 September
1948

The right of return is one of the
most fundamental rights granted to displaced persons all over the world and one
which is anchored in several bodies of international law. It has historically
been shown that the success of peace and security agreements in post-conflict
zones is inextricably linked to the right of return of displaced persons and
refugees to their homes of origin. A brief examination of the resolution of
conflicts in Bosnia, Kosovo, East Timor, and Tajikistan will show the
importance of this principle and lend further emphasis to the argument that no Middle East peace agreement will be effective
without the practical implementation of the
right of return for the Palestinians.

Peace Agreements

The right of return can be found
in numerous bodies of international law.[1]
Under humanitarian law, a general right of return exists, which applies to all
displaced persons, irrespective of how they came to be displaced during the
period of conflict. Deliberate, forcible expulsion is expressly prohibited. A
military occupant must allow the local population to be permitted to remain in
or return to their place of origin following the cessation of hostilities.

The right of return is also a
customary norm of international human rights law and can be found in a plethora
of international conventions, including the Universal Declaration of Human
Rights[2]
and the International Covenant on Civil and Political Rights[3],
as well as regional human rights treaties. The general prohibition against
forcible expulsion is also incorporated into international human rights law.

Finally the right of return is
also a very important element of refugee law. The principle of refugees'
absolute right of return to their place of origin (including their homes) is
central to the implementation of durable solutions. According to UNHCR
Executive Conclusion No. 40, "(a) The basic rights of persons to return
voluntarily to the country of origin is reaffirmed and its is urged that
international cooperation be aimed at achieving this solution and should be
further developed."[4]

The right of refugees and
displaced persons to freely return to their homes of origin is also reaffirmed
in United Nations resolutions. This includes resolutions relating to refugee
flows from Algeria, Rwanda, Cyprus, Namibia, Cambodia, Afghanistan, Bosnia-Herzegovina, Georgia, Croatia and Kosovo. The huge
importance given to this
right can be inferred from the descriptions given to it by the resolutions. The
right of return has often been described in these resolutions as an
unconditional right, as an imprescriptible right, or as an inalienable right. The
right of return of refugees and displaced persons is also reaffirmed by UN
human rights bodies such as the UN sub-Commission on the Promotion and
Protection of Human Rights.[5]

Peace Agreements

The majority of peace agreements
that prescribe permanent solutions for refugees and displaced persons recognize
their right to return to their homes of origin. These includes agreements in the
Balkans, Tajikistan, Georgia, Burundi, Rwanda, Liberia, Sierra Leone, Cambodia, and Guatemala. Significantly, the voluntary
character of the return process
is stressed. In order to ensure this, agreements state that refugees should be provided
with as much information as possible in order to make an informed choice on
their future. Agreements also specify that refugees should return under
conditions of safety - personal, physical, and material - and dignity.[6]

In the last several decades,
almost every major peace agreement to conflicts where there has been mass
displacement of refugees has included provisions related to the return of
refugees and displaced persons based on international law.[7]
This includes the 1989 Agreement on Resettlement of the Population Groups
Uprooted by the Conflict in Guatemala, the 1989 Comprehensive Peace Agreement
in Cambodia, the 1992 Comprehensive Peace Agreement in Mozambique, and the 1993 Agreement between the Government of Rwanda and
the Rwandese Patriotic Front
on the Repatriation of Rwandese Refugees. During the 1990s alone, an estimated
12 million refugees were repatriated around the world to countries such as Angola, Bosnia-Herzegovina, Cambodia, Ethiopia,
Guatemala, Mozambique, Rwanda and South Africa.

Bosnia Herzegovina

The US-sponsored Dayton Accords
is a very good example of a treaty that makes strong provisions for the return
of people displaced by armed conflict. Following three years of interethnic
civil strife between Serbs, Muslims and Croats, the warring parties initialled
a peace agreement on 21 November 1995, in Dayton, Ohio (the final agreement was
signed in Paris on 14 December 1995).

The right of almost 2 million
Bosnian refugees to return to their properties, or to receive compensation if
this was not possible, was enshrined in the peace agreement.

The most significant provision of
the Dayton Agreements for the purposes of this discussion is contained in the
Annex VII Agreement on Refugees and Displaced Persons.

Article I of this Annex states
that

1. All refugees and displaced persons have the right freely to
return to their homes of origin. They shall have the right to have restored to
them property of which they were deprived in the course of hostilities since
1991 and to be compensated for any property that cannot be restored to them. The
early return of refugees and displaced persons is an important objective of the
settlement of the conflict in Bosnia and Herzegovina. The Parties confirm
that they will accept the return of such persons who have left their territory,
including those who have been accorded temporary protection by third countries.

2. The Parties shall ensure that
refugees and displaced persons are permitted to return in safety, without risk
of harassment, intimidation, persecution, or discrimination, particularly on
account of their ethnic origin, religious belief, or political opinion.

Refugee return was seen as an
extremely important factor in resolving this brutal conflict.

Tajikistan

In 1997, a
UN-sponsored peace agreement[8]
was signed in Moscow between forces tied to the old Communist regime and the
Islamo-democratic alliance bringing to an end the 5 year civil war in the Central Asian Republic of Tajikistan. The fighting
killed tens of thousands of people,
displaced some 600,000, and forced a further 300,000 to flee for safety to Afghanistan and Russia.

Under Paragraph
2 of the Protocol on Refugees[9]
included to the Agreement, the Tajiki government assumed the obligation to
reintegrate returning refugees and internally displaced persons into the social
and economic life of the country. Under the agreement, this included
restoration of all rights, provision of humanitarian and financial aid,
assistance with employment and housing, and return of homes and property. The
government also agreed not to undertake criminal proceedings against returnees
because of their participation in the political confrontation or war.

The Protocol
provided the foundation to increase efforts to ensure the voluntary return of
all remaining refugees and displaced persons to their homes within 12 to 18
months from the date of its signature. The Parties called upon the United
Nations, the OSCE and UNHCR to provide assistance in order to ensure the safety
of returning refugees and displaced persons and to establish and expand their
presence at places where such persons were living.

Once again, the
parties determined it essential that refugees be accommodated in order that the
peace agreement prove successful.

Kosovo

In the late 90s, the Balkans were
once again rocked by warfare as hundreds of thousands of Kosovar Albanians fled
their homes amidst "ethnic cleansing" by Serbian military and
paramilitary groups during the Kosovo crisis. The UN Security Council passed
numerous resolutions condemning the ethnic cleansing and reaffirming the right
of all refugees and displaced persons to return to their homes. These include
resolutions1199[10],
1239[11],
and 1244.[12]
These guarantees were also implemented in the 1999 Interim Agreement for Peace
and Self-Government in Kosovo.[13]

The right of these refugees and
internally displaced persons to return to their pre-conflict homes precipitated
the North Atlantic Treaty Organization's (NATO) military intervention in
Kosovo. Despite much criticism of the questioned legality of the intervention,
the majority of displaced Kosovar Albanians in fact returned to their homes
soon after the fighting ceased in early June 1999.

NATO’s message to the Serbs was
quite simple; that the bombing would cease once the Serbs stopped driving the
Albanian Muslims out of Kosovo. Within days, busloads of refugees, escorted by
representatives of the U.N. High Commissioner for Refugees (UNCHR) were heading
back to the Kosovo capital of Pristina. Hundreds of thousands of Kosovar
refugees have since then returned to towns and villages all over Kosovo.

On 6 May 1999, President Bill Clinton pledged to Bosnian refugees “you will go home
again in safety and in freedom.”
Four days later then-Secretary of State Madeline Albright vehemently
proclaimed, “We must have peace on terms that will allow the people of Kosovo,
with our help, to return to their homes and rebuild their communities, and we
must have accounting for the wrongs that have been done.”

These statements together with
the terms of the Rambouillet agreement and the UN resolutions further evidence
the underlying notion that peace and security is unattainable unless the right
of return of refugees and displaced persons is both recognised and more
importantly implemented.

East Timor

East Timor declared itself
independent from Portugal on 28 November 1975 and was invaded and occupied by
Indonesian forces nine days later. It was incorporated into Indonesia in July 1976 as the province of East Timor. Following an
unsuccessful campaign of
pacification for over 20 years, during which an estimated 100,000 to 250,000
individuals lost their lives, the overwhelming majority of the people of East
Timor voted for independence from Indonesia in a UN-supervised popular
referendum on 30 August 1999.

Between the referendum and the
arrival of a multinational peacekeeping force in late September 1999,
anti-independence Timorese militias - organized and supported by the Indonesian
military - commenced a large-scale, scorched-earth campaign of retribution,
killing approximately 1,300 Timorese and forcibly displacing 300,000 people
into West Timor as refugees.

Numerous UN Security Council
resolutions reaffirmed the right of refugees and displaced persons to return in
safety and security to their homes.[14]
The success of this peace agreement was in large part due to the repatriation
and return of the refugees.

Palestine

Today, the original Palestinian
refugees and their descendents are estimated to number more than 6.5 million
and constitute the world's oldest and largest refugee population, making up
more than one-fourth of the entire refugee population in the world.

Contrary to all these agreements
that address solutions for refugees, the peace agreements between “Israel” and the Palestinians include no references to
international law and UN resolutions
as the basis for a durable solution for Palestinian refugees.

General Assembly Resolution 194[15]
reaffirms the right of Palestinian refugees displaced in 1948 to return to
their homes of origin. Paragraph 11(a) states: “refugees wishing to return to
their homes … should be permitted to do so.” The General Assembly clearly meant
the return of each refugee to “his[her] house or lodging and not to his[her]
homeland.” The Assembly rejected two separate amendments that referred in more general
terms to the return of refugees to “the areas from which they have come.”[16]

Resolution 194 has been affirmed
by the General Assembly of the United Nations nearly every year since it was
passed. A total of eight other UN Resolutions have called for implementation of
the right of return. Israel's acceptance into the United Nations in 1949 was
explicitly conditioned on its willingness to implement UN Resolution 194. It is
interesting to note that to date there has not been a single UN Security
Resolution passed regarding the fate of Palestinian refugees even though
similar resolutions were passed without question regarding refugees from Bosnia, Kosovo, East Timor and Rwanda among others.

Currently, a primary reason for Palestinians
being excluded from norms protecting other refugees is that their issue is
being negotiated outside the framework of the United Nations or other bodies
charged with upholding international law and human rights standards. The terms
of these negotiations are set by the US and Israel (both notorious for
violations of international law) and outcomes have actually perpetuated some
human rights abuses against Palestinians (such as land confiscation and
restrictions on freedom of movement). To date, agreements between Israel and the Palestinians establish procedures and mechanisms
to address the Palestinian
refugee issue but do not affirm the right of return or the right to freedom of
movement. All these agreements state that the issue of refugees displaced in
1948 will be addressed during permanent status negotiations. The very fact that
refugee rights, which international law defines as individual, inalienable and
non-negotiable, are being subjected to negotiation, illustrates the weakness of
the Palestinian position.

For more than five decades, Palestinian refugees have not
been able to exercise their legal right to return to their homes inside what is
now called "Israel". There can be no lasting solution to the
Israeli-Palestinian conflict that ignores the legitimate rights of the
Palestinian refugees. The international community must follow the successful
precedent established in the formation of peace agreements in other conflict
zones in order to ensure that Palestinian refugees are allowed to exercise
their individual right of return.

[1]
For more information, see BADIL Resource Center for Palestinian Residency and
Refugee Rights www.badil.org

[2]
"Everyone has the right to leave any country, including his own, and to
return to his country." (Article 13(2))

[3]
"No one shall be arbitrarily deprived of the right to enter his own
country." (Article 12(4))

[15]
Adopted by the 3rd Session of the General Assembly on 11 December 1948. "...the [Palestinian] refugees wishing to
return to their homes and
live at peace with their neighbors should be permitted to do so at the earliest
practicable date, and that compensation should be paid for the property of
those choosing not to return and for loss of or damage to property which, under
principles of international law or in equity, should be made good by the
Governments or authorities responsible."